Lima USA, Inc. v. Mahfouz ( 2021 )

IN THE SUPREME COURT OF THE STATE OF DELAWARE
LIMA USA, INC., §
§ No. 310, 2021
Plaintiff Below, §
Appellant, § Court Below-Superior Court
§ of the State of Delaware
v. §
§ C.A. No. N20C-09-048
MOHAMED MAHFOUZ, EMAM §
ELHAK ABDEL FATAH, and §
JOSEPH MICHAEL JOHNSON, §
JR., §
§
Defendants Below, §
Appellees. §
Submitted: October 18, 2021
Decided: November 16, 2021
Before SEITZ, Chief Justice; TRAYNOR and MONTGOMERY-REEVES,
Justices.
ORDER
After consideration of the notice to show cause and the responses, it appears
to the Court that:
(1) The appellant, Lima USA, Inc. (“Lima”), filed this appeal from a
memorandum opinion and order of the Superior Court, dated August 31, 2021,
which granted appellees’, Mohamed Mahfouz, Emam Elhak Abdel Fatah, and
Joseph Micheal Johnson, Jr. (collectively the “Appellees”), motion to dismiss and
denied Lima’s motion to stay. The dispute before the Superior Court concerns
whether the Appellees must indemnify Lima for losses it expects to bear as the result
of alleged misrepresentations by the Appellees regarding the ownership of
intellectual property in which Lima invested. After the Superior Court entered its
opinion and order, Lima filed a timely motion for clarification. The motion seeks
clarification that the Superior Court’s statement that “Sellers and Lima agreed that
Sellers would only indemnify Lima for claims brought before September 5, 2020”
refers only to a claim based on a breach of representation and warranties and not a
third-party indemnification claim. The Appellees oppose the motion for
clarification, and the Superior Court has not yet ruled on the motion.
(2) In light of the pending motion for clarification, the Clerk of this Court
issued a notice to Lima to show cause why the appeal should not be dismissed for
its failure to comply with Supreme Court Rule 42 when appealing an apparent
interlocutory order. In response to the notice to show cause, Lima cites authority
that has held that a motion for clarification does not toll the time period for filing an
appeal unless the motion is substantive, in which case the motion may be construed
as a motion for reargument that tolls the time for filing an appeal.1 Lima states that
it filed the appeal in order to preserve its appellate rights in the event that the motion
for clarification was determined to be nonsubstantive. The Appellees contend that
1
MacIntosh v. MacIntosh, 2018 WL 1747798 (Del. Apr. 11, 2018).
2
the motion for clarification seeks substantive relief and should be treated as a motion
for reargument that tolls the time for filing an appeal.
(3) In deciding whether a motion for clarification was substantive in nature,
this Court has distinguished between a motion that takes issue with the meaning of
the trial court’s decision and one that merely addresses a typographical error.2 The
Appellees contend that Lima’s motion for clarification is substantive in nature, and
Lima does not contend otherwise. Lima’s motion asks the Superior Court to clarify
whether its statement that “Sellers and Lima agreed that Sellers would only
indemnify Lima for claims brought before September 5, 2020” applies to only one
category of indemnification claims or to other categories of indemnification claims.
We conclude that the motion is substantive in nature, and it therefore is treated as a
motion for reargument.3
(4) The timely filing of a motion for reargument in a civil case tolls the
finality of a judgment until the disposition of the motion.4 Lima’s motion therefore
precluded this Court from exercising jurisdiction in the absence of Lima’s
compliance with Supreme Court Rule 42, and the appeal must be dismissed.5
2
Id. at *3.
3
Id.
4
Tomasetti v. Wilmington Sav. Fund Soc’y, FSB, 672 A.2d 61, 64 (Del. 1996).
5
Id.3
NOW, THEREFORE, IT IS ORDERED that this appeal is hereby
DISMISSED. Any docketing fee paid to this Court by the appellant in connection
with this appeal may be applied to a future appeal filed by the appellant from the
Superior Court’s final order.
BY THE COURT:
/s/ Tamika R. Montgomery-Reeves
Justice
4